Afoa v. Seattle

• Decision Date: 31 January 2013
• Docket Number: No. 85784–9.,85784–9.
• Citation: 296 P.3d 800,176 Wash.2d 460
• Court: Washington Supreme Court
• Parties: Brandon Apela AFOA, an individual, Respondent, v. PORT OF SEATTLE, a Local Government Entity in the State of Washington, Petitioner.

176 Wash.2d 460

296 P.3d 800

Brandon Apela AFOA, an individual, Respondent,

v.PORT OF SEATTLE, a Local Government Entity in the State of Washington, Petitioner.

No. 85784–9.

Supreme Court of Washington, En Banc.

Argued Feb. 16, 2012.

Decided Jan. 31, 2013.

Mark Steven Northcraft, Northcraft Bigby & Biggs PC, Seattle, WA, for Petitioner.

Raymond Everett Sean Bishop, Derek K. Moore, Bishop Law Offices PS, Normandy Park, WA, Michael T. Schein, Sullivan & Thoreson, Seattle, WA, for Respondent.

Peter J. Kirsch, W. Eric Pilsk, Kaplan Kirsch & Rockwell, Denver, CO, Monica Hargrove, Airports Council International, Washington, DC, amicus counsel for Airports Council International—North America.

Kristopher Ian Tefft, Association of Washington Business, Olympia, WA, amicus counsel for Washington Retail Association.

Arthur Merritt Fitzpatrick, City of Kent, Kent, WA, amicus counsel for City of Kent.

Anastasia R. Sandstrom, Attorney General's Office, Seattle, WA, amicus counsel for Department of Labor & Industries.

Brandi L. Ross, Washington Public Ports Association, Olympia, WA, amicus counsel for Washington Public Ports Association.

Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, George M. Ahrend, Ahrend Albrecht PLLC, Ephrata, WA, amicus counsel for Washington State Association for Justice Foundation.

WIGGINS, J.

[176 Wash.2d 464]¶ 1 Should we extend to the Port of Seattle (Port), which owns and operates Seattle–Tacoma International Airport (Sea–Tac Airport), the principles of liability imposed on other entities that control the common area of a multiemployer workplace? Brandon Afoa was paralyzed in an accident while he was working at Sea–Tac Airport and seeks to recover from the Port on three theories we have applied in other multiemployer workplace cases: as a business invitee; for breach of safety regulations under the Washington Industrial Safety and Health Act of 1973 (WISHA), chapter 49.17 RCW; and the duty of a general contractor to maintain a safe common area for any employee of subcontractors. We conclude that the same principles that apply to other multiemployer workplaces apply to Sea–Tac and that a jury could find the Port liable under any of these three theories. We affirm the Court of Appeals, which reversed the trial court's summary judgment dismissing Afoa's claims, and remand for further proceedings.

FACTS

¶ 2 Brandon Afoa was severely injured while working at Sea–Tac Airport. He was driving a powered industrial vehicle called a “tug” or “pushback” that moves airplanes to and from passenger gates. As he drove the tug/pushback toward Gate S–16, he lost control of the vehicle and yelled for help. He crashed into a “K-loader,” a large piece of loading equipment that fell on him causing severe injuries. The parties dispute the cause of the accident.

¶ 3 Afoa filed suit against the Port in King County Superior Court, alleging that the Port failed to maintain safe premises and violated common law and statutory duties to maintain a safe workplace. The Port moved for summary judgment, arguing it had no duty to Afoa because Afoa was not the Port's “employee.”

¶ 4 Indeed, the Port and Afoa do not enjoy a direct employer-employee relationship. Afoa works for Evergreen Aviation Ground Logistics Enterprises Inc. (EAGLE), which contracts with airlines to provide ground services such as loading and unloading. The Port does not employ EAGLE or contract for its services, but EAGLE nevertheless must obtain a license from the Port before it can work on the premises.

¶ 5 Although the Port does not employ Afoa or EAGLE, Afoa alleges that the Port controls the manner in which he performs his work at Sea–Tac Airport. First, he claims the Port retains control over the “Airfield Area” (where the accident allegedly took place) in its lease agreement with the airlines, which grants the airlines use of the Airfield Area “subject at all times to the exclusive control and management by the Port.” Clerk's Papers (CP) at 274. Second, Afoa claims the Port retains control through its license agreement with EAGLE, which requires EAGLE to abide by all Port rules and regulations and allows the Port to inspect EAGLE's work. The agreement also disclaims liability for accidents and equipment malfunctions. Finally, Afoa claims the Port retains control over EAGLE by the Port's conduct. He specifically claims that the Port continuously controls and supervises the actions of EAGLE and its employees and that the Port previously asserted control over tug/pushback brake maintenance following an incident that was similar to, and three months before, Afoa's accident.

¶ 6 The Port moved for summary judgment, arguing that none of Afoa's claims were viable because neither Afoa nor EAGLE was the Port's employee, but instead EAGLE was a licensee and the Port a licensor.

¶ 7 The trial court granted the Port's summary judgment motion, dismissing Afoa's claims. The Court of Appeals reversed, holding that all of Afoa's claims were viable and that summary judgment was inappropriate because all of Afoa's claims hinged on genuine issues of material fact. Afoa v. Port of Seattle, 160 Wash.App. 234, 247 P.3d 482 (2011). We granted review to decide whether summary judgment was appropriate and to examine these important issues of workplace safety. Afoa v. Port of Seattle, 171 Wash.2d 1031, 257 P.3d 664 (2011).

STANDARD OF REVIEW

¶ 8 We review summary judgment motions de novo, engaging in the same inquiry as the trial court. City of Sequim v. Malkasian, 157 Wash.2d 251, 261, 138 P.3d 943 (2006). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. We consider all disputed facts in the light most favorable to the nonmoving party, and summary judgment is appropriate only if reasonable minds could reach but one conclusion. Dowler v. Clover Park Sch. Dist. No. 400, 172 Wash.2d 471, 484, 258 P.3d 676 (2011). Finally, summary judgment is inappropriate where the existence of a legal duty depends on disputed material facts. Sjogren v. Props. of Pac. Nw., LLC, 118 Wash.App. 144, 148, 75 P.3d 592 (2003).

ANALYSIS

¶ 9 We hold that there are genuine issues of material fact precluding summary judgment on all three of Afoa's claims against the Port. We analyze each claim in turn—premisesliability, Afoa's statutory claim under WISHA, chapter 49.17 RCW, and the duty of certain parties in control of a common work area to provide adequate safety precautions. For all three claims, the Port potentially owed a duty to Afoa, and genuine factual issues preclude summary judgment. Accordingly, we affirm the Court of Appeals on all three issues.

I. Afoa's premises liability claim is potentially viable. Afoa is a business invitee and there are triable issues of fact whether the Port breached its corresponding duty to Afoa.

¶ 10 Afoa and the Port dispute Afoa's status and standard of care under Afoa's theory of premises liability. Under common law premises liability, a landowner owes differing duties to entrants onto land depending on the entrant's status as a trespasser, a licensee, or an invitee. Iwai v. State, 129 Wash.2d 84, 90–91, 915 P.2d 1089 (1996). We hold that Afoa is a business invitee. We also affirm the Court of Appeals' reversal of summary judgment because there are genuine issues of material fact on this claim.

¶ 11 A “business invitee” is a person who is “ ‘invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.’ ” Younce v. Ferguson, 106 Wash.2d 658, 667, 724 P.2d 991 (1986) (quoting Restatement (Second) of Torts § 332(3) (1965)). An invitation can be either express or implied permission gathered from the words or conduct of the landowner. SeeRestatement (Second) of TortsS § 332 cmt. c.

¶ 12 In contrast, a licensee is “ ‘a person who is privileged to enter or remain on land only by virtue of the possessor's consent.’ ” Younce, 106 Wash.2d at 667, 724 P.2d 991 (quoting Restatement (Second) of Torts § 330). This includes social guests and others invited onto the land who do not meet the legal definition of an invitee. Id.

[176 Wash.2d 468]¶ 13 Our premises liability analysis cannot begin and end with the fact that the Port has labeled its contract with Afoa's employer EAGLE as a “ license.” Instead, we must look at the substance of the relationship to determine Afoa's status.

¶ 14 Afoa was plainly a business invitee because he was on the premises for a purpose connected to business dealings with the Port. There is simply no genuine dispute in the record on this point. The Port is in the business of running an airport, and Afoa was doing airport work. Indeed, he was doing work (loading and unloading airplanes) without which Sea–Tac Airport could not operate. Afoa was unquestionably on the premises for a purpose connected to business, so he is a business invitee. On this record, no reasonable jury could find otherwise.

¶ 15 The Port's two arguments to the contrary are unpersuasive. First, the Port claims it did not “invite” Afoa onto the premises, so he cannot be a business invitee. This argument is flawed because the Port confuses the common law term of art with social convention. At common law, an invitation can consist of any words or conduct “which justifies others in believing that the possessor desires them to enter the land....” Restatement (Second) of Torts § 332 cmts. b & c. Here, the Port licensed EAGLE to enter the premises to perform specific tasks, expressly contemplating that EAGLE's employees would perform those tasks. This is the essence of an invitation. The Port licensed EAGLE to contract with airlines knowing that EAGLE's work would take place on the premises. The Port's conduct justifies EAGLE in thinking its entry was desired, so the Port's claim that it did not invite EAGLE onto the premises is unavailing. Furthermore, EAGLE can be physically present at Sea–Tac...